September the 16th, which I had that of writing to his Excellency
the Count de Montmorin, with the papers therein referred to, and of
soliciting the order I have asked for. The originals were sent at the
date before mentioned. Notwithstanding the refusal of the houses of
Schweighaeuser and Dobree, and of Puchilberg, to settle their claim
against the United States by arbitration, as I proposed to them, the
United States will still be ready to do them justice. But those houses
must first retire from the only two propositions they have ever made;
to wit, either a payment of their demand without discussion, or a
discussion before the tribunals of the country. In the mean time, I
shall hope an acknowledgment with respect to us, of the principle which
holds as to other nations; that our public property here cannot be
seized by the territorial judge. It is the more interesting to us, as
we shall be more and longer exposed than other nations, to draw arms
and military stores from Europe. Our preference of this country has
occasioned us to draw them from hence alone, since the peace: and the
friendship we have constantly experienced from the government, will, we
doubt not, on this and every other occasion, insure to us the protection
of what we purchase. I have the honor to be, Sir, your friend and
servant,
Th: Jefferson.
LETTER CLXVI.--TO MR. CUTTING, October 2, 1788
TO MR. CUTTING.
Paris, October 2, 1788.
Dear Sir,
I am now to acknowledge the receipt of your favors of the 16th and
23rd ultimo and to thank you for the intelligence they conveyed. That
respecting the case of the interrogatories in Pennsylvania, ought
to make noise. So evident a heresy in the common law ought not to be
tolerated on the authority of two or three civilians, who happened,
unfortunately, to make authority in the courts of England. I hold it
essential, in America, to forbid that any English decision which has
happened since the accession of Lord Mansfield to the bench, should ever
be cited in a court: because, though there have come many good ones
from him, yet there is so much sly poison instilled into a great part of
them, that it is better to proscribe the whole. Can you inform me what
has been done by England on the subject of our wheat and flour?
The papers say it is prohibited, even in Hanover. How do their
whale-fisheries turn out, this year? I hope a deep wound will be given
them in that article soon, and such as will leave us in no danger from
their competition.
*****
I am, with very great esteem, Dear Sir, your most obedient, humble
servant,
Th: Jefferson.
LETTER CLXVII.--TO JOHN JAY, November 14, 1788
TO JOHN JAY.
Paris, November 14, 1788.
Sir,
In my letter of December the 21st, 1787, I had the honor of
acknowledging the receipts of your two favors of July the 27th, 1787,
which had come to my hands December the 19th, and brought with them
my full powers for treating on the subject of the consular convention.
Being then much engaged in getting forward the _Arrêt_ which came out
the 29th of December, and willing to leave some interval between
that act, and the solicitation of a reconsideration of our consular
convention, I had declined mentioning it, for some time, and was just
about to bring it on the carpet, when it became necessary for me to go
to Amsterdam. Immediately after my return, which was about the last
of April, I introduced the subject to the Count de Montmorin, and have
followed it unremittingly, from that time. The office of Marine, as well
as that of Foreign Affairs, being to be consulted in all the stages of
the negotiation, has protracted its conclusions till this time: it is
at length signed this day, and I have now the honor to enclose the
original, for the ratification of Congress. The principal changes
effected are the following:
The clauses of the Convention of 1784, clothing consuls with privileges
of the law of nations, are struck out, and they are expressly subjected,
in their persons and property, to the laws of the land.
That giving the right of sanctuary to their houses, is reduced to a
protection of their chancery room and its papers.
Their coercive powers over passengers are taken away; and over those,
whom they might have termed deserters of their nation, are restrained to
deserted seamen only.
The clause, allowing them to arrest and send back vessels, is struck
out, and instead of it, they are allowed to exercise a police over the
ships of their nation generally.
So is that, which declared the indelibility of the character of subject,
and the explanation and extension of the eleventh article of the treaty
of amity.
The innovations in the laws of evidence are done away: and the
convention is limited to twelve years’ duration. Convinced that the fewer
examples, the better, of either persons or causes unamenable to the laws
of the land, I could have wished, still more had been done; but more
could not be done, with good humor. The extensions of authority given
by the convention of 1784, were so homogeneous with the spirit of this
government, that they were prized here. Monsieur de Reyneval has had the
principal charge of arranging this instrument with me; and, in justice
to him, I must say, I could not have desired more reasonable and
friendly dispositions, than he demonstrated through the whole of it.
I enclose herewith the several schemes successively proposed between us,
together with the copies of the written observations given in with them,
and which served as texts of discussion, in our personal conferences.
They may serve as a commentary on any passage which may need it, either
now or hereafter, and as a history how any particular passage comes to
stand as it does. No. 1. is the convention of 1784. No. 2. is my first
scheme. No. 3. theirs in answer to it. No. 4. my next, which brought us
so near together, that, in a conference on that, we arranged it in the
form in which it has been signed. I add No. 5. the copy of a translation
which I have put into their hands, with a request, that if they find any
passages in which the sense of the original is not faithfully rendered,
they will point them out to me; otherwise, we may consider it as having
their approbation. This, and the convention of 1784, (marked No. 1.) are
placed side by side, so as to present to the eye, with less trouble, the
changes made; and I enclose a number of printed copies of them, for the
use of the members, who will have to decide on the ratification. It is
desirable that the ratification should be sent here for exchange, as
soon as possible.
With respect to the consular appointments, it is a duty on me to add
some observations, which my situation here has enabled me to make.
I think it was in the spring of 1784, that Congress (harassed by
multiplied applications from foreigners, of whom nothing was known but
on their own information, or on that of others as unknown as themselves)
came to a resolution, that the interest of America would not permit the
naming any person not a citizen, to the office of consul, vice-consul,
agent, or commissary. This was intended as a general answer to that
swarm of foreign pretenders. It appears to me, that it will be best,
still to preserve a part of this regulation. Native citizens, on several
valuable accounts, are preferable to aliens, and to citizens alien-born.
They possess our language, know our laws, customs, and commerce; have,
generally, acquaintance in the United States; give better satisfaction;
and are more to be relied on, in point of fidelity. Their disadvantages
are, an imperfect acquaintance with the language of this country, and an
ignorance of the organization of its judicial and executive powers,
and consequent awkwardness, whenever application to either of these
is necessary, as it frequently is. But it happens, that in some of
the principal ports of France, there is not a single American (as in
Marseilles, L’Orient, and Havre), in others but one (as in Nantes and
Rouen), and in Bordeaux only, are there two or three. Fortunately for
the present moment, most of these are worthy of appointments. But we
should look forward to future times, when there may happen to be no
native citizens in a port, but such as, being bankrupt, have taken
asylum in France from their creditors, or young ephemeral adventurers
in commerce, without substance or conduct, or other descriptions, which
might disgrace the consular office, without protecting our commerce. To
avail ourselves of our good native citizens, when we have one in a
port, and when there are none, to have yet some person to attend to our
affairs, it appears to me advisable to declare, by a standing law, that
no person but a native citizen shall be capable of the office of consul,
and that the consul’s presence in his port should suspend, for the time,
the functions of the vice-consul. This is the rule of 1784, restrained
to the office of consul, and to native citizens. The establishing
this, by a standing law, will guard against the effect of particular
applications, and will shut the door against such applications, which
will otherwise be numerous. This done, the office of vice-consul may
be given to the best subject in the port, whether citizen or alien,
and that of consul, be kept open for any native citizen of superior
qualifications, who might come afterwards to establish himself in the
port. The functions of the vice-consul would become dormant during the
presence of his principal, come into activity again on his departure,
and thus spare us and them the painful operation of revoking and
reviving their commissions perpetually. Add to this, that during the
presence of the consul, the vice-consul would not be merely useless, but
would be a valuable counsellor to his principal, new in the office, the
language, laws, and customs of the country. Every consul and vice-consul
should be restrained in his jurisdiction, to the port for which he is
named, and the territory nearer to that than to any other consular or
vice-consular port, and no idea be permitted to arise, that the grade
of consul gives a right to any authority whatever over a vice-consul, or
draws on any dependence.
It is now proper I should give some account of the state of our dispute
with Schweighaeuser and Dobree. In the conversation I had with Dobree,
at Nantes, he appeared to think so rationally on this subject, that I
thought there would be no difficulty in accommodating it with him, and
I wished rather to settle it by accommodation, than to apply to the
minister. I afterwards had it intimated to him, through the medium
of Mr. Carnes, that I had it in idea, to propose a reference to
arbitrators. He expressed a cheerful concurrence in it. I thereupon made
the proposition to him formally, by letter, mentioning particularly,
that we would choose our arbitrators of some neutral nation, and, of
preference, from among the Dutch refugees here. I was surprised to
receive an answer from him, wherein, after expressing his own readiness
to accede to this proposition, he added, that on consulting Mr.
Puchilberg, he had declined it; nevertheless, he wished a fuller
explanation from me, as to the subjects to be submitted to arbitration.
I gave him that explanation, and he answered finally, that Mr.
Puchilberg refused all accommodation, and insisted that the matter
should be decided by the tribunals of the country. Accommodation being
at an end, I wrote to Monsieur de Montmorin, and insisted on the usage
of nations, which does not permit the effects of one sovereign, to
be seized in the territories of another, and subjected to judiciary
decision there. I am promised that the stores shall be delivered; but
the necessary formalities will occasion some delay. The King being
authorized to call all causes before himself, ours will be evoked from
the tribunal where it is, and will be ended by an order to deliver
up the stores arrested, leaving it to the justice of Congress, to do
afterwards what is right, as to the demand of Schweighaeuser and Dobree.
I wish I could receive instructions what to do with the stores, when
delivered. The arms had certainly better be sent to America, as they are
good, and yet will sell here for little or nothing. The gun-stocks
and old iron had better be sold here; but what should be done with the
anchors? Being thoroughly persuaded that Congress wish that substantial
justice should be done to Schweighaeuser and Dobree, I shall, after the
stores are secured, repeat my proposition of arbitration to them. If
they then refuse it, I shall return all the papers to America, and
consider my powers for settling this matter as at an end.
I have received no answer yet from Denmark on the subject of the prizes;
nor do I know whether to ascribe this silence to an intention to evade
the demand, or to the multitude of affairs they have had on their hands
lately. Patience seems to be prudence, in this case; to indispose them,
would do no good, and might do harm. I shall write again soon, if no
answer be received in the mean time.
I have the honor to be, with sentiments of the most perfect esteem and
respect, Sir, your most obedient and most humble
servant,
Th: Jefferson.
[The following is the translation of the convention referred
to as No. 5. in the preceding letter.]
_Convention between his Most Christian Majesty and the United States of
America, for the purpose of defining and establishing the Functions and
Privileges of their respective Consuls and Vice-Consuls_.
His Majesty the Most Christian King, and the United States of America,
having, by the twenty-ninth article of the treaty of amity and commerce
concluded between them, mutually granted the liberty of having, in
their respective States and ports, Consuls, Vice-Consuls, Agents, and
Commissaries, and being willing, in consequence thereof, to define
and establish, in a reciprocal and permanent manner, the functions
and privileges of Consuls and Vice-Consuls, which they have judged it
convenient to establish of preference, his M. C. Majesty has nominated
the Sieur Count of Montmorin of St. Herent, Marechal of his Camps and
Armies, Knight of his Orders and of the Golden Fleece, his Counsellor
in all his Councils, Minister and Secretary of State, and of his
Commandments and Finances, having the department of foreign affairs, and
the United States have nominated Thomas Jefferson, citizen of the United
States of America and their Minister Plenipotentiary near the King, who
after having communicated to each other their respective full powers,
have agreed on what follows:
Article I. The Consuls and Vice-Consuls named by the M. C. K. and the
United States, shall be bound to present their commissions according to
the forms which shall be established respectively by the M. C. K. within
his dominions, and by the Congress within the United States; there shall
be delivered to them, without any charges, the _Exequatur_ necessary for
the exercise of their functions; and on exhibiting the said _Exequatur_,
the governors, commanders, heads of justice, bodies corporate,
tribunals, and other officers having authority in the ports and places
of their consulates, shall cause them to enjoy immediately, and without
difficulty, the pre-eminences, authority, and privileges, reciprocally
granted, without exacting from the said Consuls and Vice-Consuls any
fee, under any pretext whatever.
Article II. The Consuls and Vice-Consuls, and persons attached to their
functions, that is to say, their chancellors and secretaries, shall
enjoy a full and entire immunity for their chancery and the papers
which shall be therein contained: they shall be exempt from aU, personal
service, from soldiers’ billets, militia, watch, guard, guardianship,
trusteeship, as well as from all duties, taxes, impositions, and charges
whatsoever, except on the estate real and personal of which they may
be the proprietors or possessors, which shall be subject to the taxes
imposed on the estates of all other individuals: and in all other
instances they shall be subject to the laws of the land, as the natives
are.
Those of the said Consuls and Vice-Consuls who shall exercise commerce,
shall be respectively subject to all taxes, charges, and impositions
established on other merchants.
They shall place over the outward door of their house the arms of their
sovereign: but this mark of indication shall not give to the said house
any privilege of asylum for any person or property whatsoever.
Article III. The respective Consuls and Vice-Consuls may establish
agents in the different ports and places of their departments, where
necessity shall require. These agents maybe chosen among the merchants,
either national or foreign, and furnished with a commission from one
of the said Consuls; they shall confine themselves respectively to the
rendering to their respective merchants, navigators, and vessels, all
possible service, and to inform the nearest Consul of the wants of
the said merchants, navigators, and vessels, without the said agents
otherwise participating in the immunities, rights, and privileges
attributed to Consuls and Vice-Consuls, and without power, under any
pretext whatever, to exact from the said merchants any duty or emolument
whatsoever.
Article IV. The Consuls and Vice-Consuls respectively, may establish a
chancery, where shall be deposited the consular determinations, acts,
and proceedings, as also testaments, obligations, contracts, and other
acts done by or between persons of their nation, and effects left by
decedents, or saved from shipwreck.
They may, consequently, appoint fit persons to act in the said chancery,
qualify and swear them in, commit to them the custody of the seal, and
authority to seal commissions, sentences, and other consular acts,
and also to discharge the functions of notaries and registers of the
consulate.
Article V. The Consuls and Vice-Consuls respectively, shall have the
exclusive right of receiving in their chancery, or on board their
vessels, the declarations and all other the acts which the captains,
masters, crews, passengers, and merchants of their nation may choose to
make there, even their testaments and other disposals by last will: and
the copies of the said acts, duly authenticated by the said Consuls or
Vice-Consuls, under the seal of their consulate, shall receive faith
in law, equally as their originals would, in all the tribunals of the
dominions of the M. C. King and of the United States.
They shall also have, and exclusively, in case of the absence of the
testamentary executor, guardian, or lawful representative, the right
to inventory, liquidate, and proceed to the sale of the personal estate
left by subjects or citizens of their nation, who shall die within
the extent of their consulate; they shall proceed therein with the
assistance of two merchants of their said nation, or, for want of them,
of any other at their choice, and shall cause to be deposited in their
chancery, the effects and papers of the said estates; and no officer,
military, judiciary, or of the police of the country, shall disturb them
or interfere therein, in any manner whatsoever: but the said Consuls
and Vice-Consuls shall not deliver up the said effects, nor the proceeds
thereof, to the lawful representatives or to their order, till they
shall have caused to be paid all debts which the deceased shall have
contracted in the country; for which purpose the creditor shall have a
right to attach the said effects in their hands, as they might in those
of any other individual whatever, and proceed to obtain sale of them,
till payment of what shall be lawfully due to them. When the debts
shall not have been contracted by judgment, deed, or note, the signature
whereof shall be known, payment shall not be ordered, but on the
creditor’s giving sufficient surety resident in the country, to refund
the sums he shall have unduly received, principal, interest, and costs;
which surety, nevertheless, shall stand duly discharged after the
term of one year, in time of peace, and of two, in time of war, if the
discharge cannot be formed before the end of this term, against the*
representatives who shall present themselves.
And in order that the representatives may not be unjustly kept out of
the effects of the deceased, the Consuls and Vice-Consuls shall notify
his death in some one of the gazettes published within their consulate,
and that they shall retain the said effects in their hands four months,
to answer all just demands which shall be presented; and they shall be
bound, after this delay, to deliver to the persons succeeding thereto,
what shall be more than sufficient for the demands which shall have been
formed.
Article VI. The Consuls and Vice-Consuls, respectively, shall receive
the declarations, protests, and reports of all captains and masters of
their respective nations, on account of average losses sustained at sea;
and these captains and masters shall lodge in the chancery of the said
Consuls and Vice-Consuls, the acts which they may have made in other
ports, on account of the accidents which may have happened to them on
their voyage. If a subject of the M. C. K. and a citizen of the United
States, or a foreigner, are interested in the said cargo, the average
shall be settled by the tribunals of the country, and not by the Consuls
or Vice-Consuls; but when only the subjects or citizens of their own
nation shall be interested, the respective Consuls or Vice-Consuls shall
appoint skilful persons to settle the damages and average.
Article VII. In cases where by tempest, or other accident, French ships
or vessels shall be stranded on the coasts of the United States, and
ships or vessels of the United States shall be stranded on the coasts of
the dominions of the M. C. K.,the Consul or Vice-Consul nearest to the
place of shipwreck shall do whatever he may judge proper, as well
for the purpose of saving the said ship or vessel, its cargo and
appurtenances, as for the storing and the security of the effects
and merchandise saved. He may take an inventory of them, without the
intermeddling of any officers of the military, of the customs, of
justice, or of the police of the country, otherwise than to give to the
Consuls, Vice-Consuls, captain, and crew of the vessels shipwrecked or
stranded, all the succor and favor which they shall ask of them, either
for the expedition and security of the saving and of the effects saved,
as to prevent all disturbance.
And in order to prevent all kind of dispute and discussion in the said
cases of shipwreck, it is agreed that when there shall be no Consul or
Vice-Consul to attend to the saving of the wreck, or that the residence
of the said Consul or Vice-Consul (he not being at the place of the
wreck) shall be more distant from the said place than that of the
competent judge of the country, the latter shall immediately proceed
therein, with all the despatch, certainty, and precautions, prescribed
by the respective laws; but the said territorial judge shall retire, on
the arrival of the Consul or Vice-Consul, and shall deliver over to
him the report of his proceedings, the expenses of which the Consul and
Vice-Consul shall cause to be reimbursed to him, as well as those of
saving the wreck.